Bills Digest no. 50 2007–08

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

To amend the
Broadcasting Services Act 1992 (the Broadcasting Services
Act) to give the Australian Communications and Media Authority (the
ACMA) the discretion to consider late applications for renewals of
community broadcasting licences up to the expiry date of the
licence.

Part 6 of the Broadcasting Services Act
provides for the allocation and renewal of community broadcasting
licences.

As at December 2006, there was a total of 358
current community radio broadcasting licences in Australia. There
were also approximately 80 remote indigenous broadcasters and 36
current temporary community broadcasting licences. [1]

In deciding whether to renew a community
broadcasting licence the ACMA must take into account all those
matters which are relevant to an original grant of such a licence
including:

the extent to which the proposed service would
meet the existing and perceived future needs of the community
within the licence area

the nature and diversity of the interest of
that community

the nature and diversity of other broadcasting
services available within the licence area

the capacity of the licensee to continue
providing the subject service

the undesirability of one person being in a
position to exercise control of more than one community
broadcasting licence in the same licence area, and

the undesirability of the Commonwealth, a State
or a Territory or a political party being in a position to exercise
control of a community broadcasting licence. [2]

The ACMA currently has no discretion to
consider late applications for the renewal of community
broadcasting licences, regardless of the circumstances giving rise
to the application.

According to the Explanatory Memorandum some
community broadcasting licensees have lodged renewal applications
up to three months late. [3] While most community broadcasters have adequate
administrative processes in place to ensure that their licence
renewal applications are submitted within time, others operate
without paid staff and have little administrative support. [4] Consequently a good
community broadcasting licensee, providing a valuable public
service, could lose its licence as a result of making a late
application even in circumstances where the licensee can show good
reasons as to why the application is late. [5]

Existing subsection 90(1) of the Broadcasting
Services Act provides that the ACMA may renew a community
broadcasting licence if the licensee makes an application for
renewal by submitting the approved form. According to their
website, the ACMA writes to existing community broadcasting
licensees approximately 58 weeks before the expiry of their licence
to request that they submit an application to renew it no later
than 52 weeks before the expiry of the licence. [7]

Existing subsection 90(1A) sets out the
general rule that a licensee must apply for the
renewal of the licence within the following times:

the earliest date to apply is one year before
the licence is due to expire, and

the latest date to apply is the first of the
following times:

26 weeks before the licence is due to
expire, or

a time that is notified in writing to the
licensee by the ACMA.

Under subsection 91(3) the ACMA is not
required to conduct an investigation or a hearing into whether a
licence should be renewed. However it does take into consideration
written submissions from the public in making its decision and may
require clarification from the licensee of certain matters before
making its decision. This is the reason for the lengthy
timeframe.

Item 2 of the Bill amends
existing subsection 90(1A) so that the general rule regarding
renewals is subject to proposed subsection 90(1C)
which allows the submission to the ACMA of late applications by
licensees in certain circumstances. [8]

Item 3 of the Bill inserts
proposed subsections 90(1C) to (1F).

Proposed subsection 90(1C)
authorises the ACMA to consider a late application for renewal if
all the following conditions are satisfied:

the licensee makes the application before the
time when the licence is due to expire and

the application is accompanied by a written
statement setting out the reasons for the late lodgement of the
application and

the ACMA considers that there are exceptional
circumstances that warrant consideration of the application.

Proposed subsection 90(1D)
provides that in deciding whether exceptional circumstances exist,
the ACMA must take into account all of the
following matters:

how late the application is

the reasons given by the licensee for the late
lodgement of the application

the number of paid staff employed by the
licensee, and

any other matters which ACMA thinks are relevant.

Where the ACMA decides that it will consider a
late application, and has not made a decision on the application by
the date that the licence is due to expire, proposed
subsection 90(1E) provides that the licence will remain in
force until the ACMA has made its decision.

Where the ACMA decides that it will consider a
late application, and has not made a decision on the application
within 26 weeks of receiving it, the ACMA is taken to have made a
decision to refuse to renew the licence at the end of the 26 week
period: proposed subsection 90(1F).

Existing subsection 91(1) allows the ACMA to
renew a community broadcasting licence for a period of five years.
Item 4 of the Bill amends subsection 91(1) to
grant a licence for a shorter period in circumstances where the
application to renew an existing licence has been lodged late.

Where:

the ACMA renews a licence after its expiry
date, and

under proposed subsection 90(1E) the licence
remained in force until the ACMA made a decision on the
application

then proposed paragraph 91(1)(a)
will require the ACMA to renew the licence beginning on the date
that the ACMA made its decision to renew the licence, and ending on
the date which is five years after the expiry date.

Under proposed paragraph
91(1)(b) the ACMA may renew all other licences for a
period of five years beginning immediately after their expiry
date.

Item 5 of the Bill provides
that these amendments to sections 90 and 91 of the Broadcasting Act
apply to an application for renewal which is made after the
commencement of the relevant item, that is, the date on which the
Act receives Royal Assent.

(1) The Minister may, after consulting the
ACMA, and in accordance with the spectrum plan, by written
instrument:

(a) designate a part of the spectrum as being primarily for
broadcasting purposes; and

(b) refer it to the ACMA for planning under Part 3 of the
Broadcasting Services Act 1992.

Item 148 of Schedule 1 of the Broadcasting
Legislation Amendment (Digital Radio) Act purports to amend section
31 by inserting the words or restricted datacasting services, or
both after the phrase broadcasting services .

This amendment could not take effect as there
is no phrase broadcasting services in section 31(1) of the
Radiocommunications Act.

Item 6 of this Bill corrects
that error so that the words or restricted datacasting services, or
both can be inserted after the phrase broadcasting purposes , as
was originally intended.

(2) If a datacasting licence is suspended because of a breach of
a condition set out in clause 14, 16, 20B or 21, the ACMA may take
such action, by way of suspending one or more datacasting licences
held by:

(a) the licensee; or

(b) a related body
corporate of the licensee;

(2A)

(3) If a datacasting licence is cancelled because of a breach of
a condition set out in clause 14, 16, 20B or 21, the ACMA may take
such action, by way of cancelling one or more datacasting licences
held by:

This amendment could not take effect as the
reference to the section should have been 20B , that is, the
inclusion of the comma was incorrect.

Item 7 of this Bill corrects
the error so that the reference to section 20B , is to be omitted
from subsections 54(2) and 54(3), as was originally intended.

Conclusion

Both of
the technical corrections are retrospective. The introduction of
retrospective legislation is generally opposed in principle.
However, the speed with which the errors were detected and
corrected means that the retrospective effect of items 6 and 7 of
the Bill will not cause a detriment. The Bill is not contentious
and does not contain any provisions which would indicate that it
should not be passed.

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